The new elementary school proposed for Ashley and Cross streets.
WESTFIELD – During the debate over redistricting, and the response after the Supreme Judicial Court decided to hear the appeal on Article 97 protection for the Cross St. playground and the Ashley Street elementary school project, people kept saying that the holdup and litigation has cost the city “millions.”
There are three cost centers associated with the school project: litigation, building materials, associated storage and non-use and the expected savings from school consolidation.
The litigation has not cost that much, according to city solicitor Susan Phillips, largely because a lot of the legal work has been done in house by the Law Department. Phillips said the actual money spent for court is just under $22,000.
Phillips explained that there have been a couple of different cases. The city was initially sued by Ernest and Elizabeth Simmons for a 3-foot side yard variance, which the Zoning Board of Appeals granted in 2011. That case was handled in-house by then part-time litigation attorney William O’Grady. Superior Court Judge Richard J. Carey ruled that the ZBA’s decision was legal and awarded the city summary judgment two years later on June 18, 2014.
On September 5, 2012, Smith et. al v. The City of Westfield asked the Superior Court for an injunction to prevent moving forward with the construction of the school based on Article 97 protection of 1.37 acres of the Cross St. playground which was slated for the school project. Judge Tina Page granted the injunction, and then modified the order on September 18, allowing construction to proceed on the undisputed land. The injunction was also initially handled in house, with O’Grady arguing for Westfield.
Meanwhile, in January 2013, the firm of Murphy, Hesse, Toomey & Lehan was paid $2,537.20 for research on Article 97 protection.
The hearing on the injunction went to the Superior Court two years later on October 7, 2014. One month earlier, William O’Grady was sworn in as a judge. Phillips had planned to take over for the city, but was unable to argue the case due to knee surgery scheduled for that same date. The city hired the law office of John. T. Liebel, former chief of litigation for the City of Springfield. During 2014, the law office of John T. Liebel was paid $9,187.50 to handle the case. The City of Westfield prevailed in the hearing.
When Smith et. al appealed the case in April of 2015 to the Massachusetts Appeals Court, Liebel was paid $5,197.72 for his work on that case, which Westfield also won in August, 2016. The plaintiffs then appealed the case to the Supreme Judicial Court, which ruled at the end of the year that they would hear the appeal. Phillips said another $5,000 has been set aside for the Supreme Judicial Court hearing.
“We won’t spend more than $22,000. It’s not because we haven’t been working. It’s because we’ve done it in house,” Phillips said last week. She said it has been a lot of work for the city departments, including responding to constant Freedom of Information (FOI) requests from the plaintiffs. Phillips said she expects the SJC to hear the case in April.
Westfield Public Schools business manager Ron Rix said there have been a lot of costs other than legal associated with the elementary school project. He said the city purchased kitchen equipment and HVAC components for the project that are being stored.
Rix said the city will need all new architectural designs that are brought up to 2017-2018 codes, and rewrite the bid specs on construction. He said labor and parts have gone up as well.
According to Tammy Tefft, director of purchasing, the increase in costs to the city due to the Article 97 suit as of Feb. 13, 2017 is $826,010, not counting the cost of materials and parking lease.
Increase Costs for Project to date as of 2/13/2017
OPM (Owner’s Project Manager) Cost increase for Article 97 $ 224,529.00
OPM (Owner’s Project Manager) increase to get city through to construction$ 302,000.00
Design to get city through construction $ 245,185.00 expect increase as building code has changed
Cost to close out Construction Contract $ 15,986.00 One time fee to Fontaine Bros.
Rental of storage trailer FY16 $ 1,975.00,FY17 $ 1,800.00 Yearly fee expect two more years
Storage of Brick-monthly $357. $ 8,222.50 cost paid to date 2/13/2017,
Shrink wrap of equipment $ 1,988.00
Stabilization of soil after work stoppage $ 6,200.00
Purchase of fence to keep worksite safe $ 18,125.00
Total increase to the City due to Article 97 $ 826,010.50
According to Tefft, there is the added cost of the equipment sitting in storage. That includes kitchen equipment sitting in storage and not being used which cost $86,000; roof top units purchased through the contract sitting and waiting for the project that are out of warranty, which cost $353,623; and the brick, which cost the city $13,648; for another total of $453,271.
The city is also paying $1,000 per month ($12,000 per year) on a 10-year lease for the parking lot of St. Peter and St. Casimir Parish, which would have been used for school parking.
Other costs that have been incurred to date by the building project, according to Phillips, were the purchase of a house on the building site for $170,000, two lots that were purchased from the Diocese for between $110,000-$120,000, and land appraisals at a cost of no more than $15,000. Phillips said the city also had filing fees and environmental statements that cost between $100 and $150 each.
In addition to the actual dollars that have been paid out, Rix said the city has lost the savings that would have been realized by consolidating three elementary schools into one. He estimates the total cost savings of the consolidation to be $1,026,902 per year. He explained that instead of three principals, there would be one, instead of three nurses, one, and instead of six custodians, four. They would also have consolidated classes and teachers, and would have conserved on heat, utilities and lights.
Rix said the district is also spending money on maintenance of the Abner Gibbs elementary school just to keep it open. The school is not handicap accessible, and needs a new roof, at the cost of $250,000.
“How much money do we want to invest in a school that’s going to be closed in a short period of time,” Rix asked.
As to the upcoming court case, Phillips said she expects that the SJC will rule in the city’s favor. As for the Attorney General asking for the hearing in order to have a clarification from the court on Article 97 protection, Phillips said, “It seemed far-fetched that our case would rise to that level.”
“I feel like the law has been on our side every step of the way. I would hope they’ll be consistent,” Phillips added. She said the city has won every case to date, and plans to go forward and see what happens in April.
Meanwhile, the school building project is on hold for at least two more years.
“We’ll miss another construction season. We’d be bidding it now,” Phillips said.
